Earlier this month, the U.S. Fourth Circuit Court of Appeals, in Virginia, held that a race discrimination class action against Nucor Corporation could proceed. This decision marked the second time that this appellate court has reversed the trial judge’s decision not to let the class action proceed.

The case centers around a plant in South Carolina where workers melt, form, finish, and ship steel products to customers. The plaintiffs represent a class of black employees at that plant. Before the plaintiffs initiated legal action, the plant had 611 employees; 71 of those 611 employees were black but only one supervisor in the entire plant was black.

The plaintiffs have alleged that systemic discrimination existed at the plant that (a) worked to deprive them of equal opportunities for promotions and (b) led to a hostile work environment. The trial judge decided to let the hostile work environment claim go forward as a class action but had refused to permit the promotion claim to go forward. The Fourth Circuit considered the statistical evidence that the plaintiffs presented as well as anecdotal evidence of discrimination against black workers at the plant. The Fourth Circuit held that this anecdotal evidence not only supported the hostile work environment claim but also supported the promotions claim. Some of this anecdotal evidence was as follows:

One supervisor allegedly said that “niggers aren’t smart enough” to break production records; and

Supervisors allegedly ignored white employees’ racially hostile actions such as the display of a noose, common displays of the Confederate flag, and one employee wearing a KKK hood.

The plaintiffs presented statistical evidence to show significant disparities in the rates at which the plant promoted black employees as compared to white employees. Nucor’s lawyers argued that this statistical evidence was not strong enough to permit a class action to go forward because it rested, in part, on assumptions that the plaintiff’s expert used. However, the Fourth Circuit noted that these assumptions were reasonable and the only reason the expert needed to make the assumptions was because the plant had destroyed records.

In permitting the class action to go forward, the Fourth Circuit considered both the statistical evidence and the anecdotal evidence. One judge on the Fourth Circuit panel that ruled on the case disagreed with the other judges’ decision and criticized them for relying on the evidence of a hostile work environment to support the promotions claim. This dissenting judge believed that statements, like the ones described above, bore no relationship to the promotion decisions. The other two judges on the Fourth Circuit panel which decided the case rejected this criticism stating that the dissenting judge’s reasoning was “perplexingly divorced from reality and the history of workplace discrimination.” They went on to say that it “is difficult to fathom how widespread racial animus of the type alleged here, an animus that consistently emphasized the inferiority of black workers, bears no relationship to decisions whether or not to promote an employee of that race.”